PUSHED TO THE BRINK Endangered species law not a cure-all, critics say
By Mike Taugher
CONTRA COSTA TIMES

Thirty years ago, the answer seemed obvious.

The bald eagle, a national symbol, was slipping toward extinction. So were species of pelican, whale, wolf and fox. Human progress was trampling over nature with nothing much to stop it. Something had to be done.

The answer was the Endangered Species Act. Passed by huge bipartisan majorities in Congress and signed into law 30 years ago today by President Nixon, the act has become one of the most uncompromising and controversial environmental laws in the land.

Scientists say we are living in an age of mass extinction, the sixth such event in Earth's history and the first since the collapse of dinosaurs.

Yet under the endangered species law's provisions, wolves have been reinstated at Yellowstone National Park. California condors, which were so close to extinction that biologists nabbed the last wild bird in 1987 for captive breeding, are again soaring above parts of California and the Grand Canyon. Other species likely would be extinct today without its protection.

To environmentalists who want to protect forests, restore rivers or block development, the act has become the sledgehammer in their legal toolbox, the only law they say gives the natural world a real voice in a nation's decisions.

But critics say court-driven enforcement of the law has gone too far. They say the act was meant to protect eagles, pelicans and otters, not minnows, flies and beetles. They say it weighs too heavily on the side of wildlife and ignores the costs it imposes on society. And they say for all the heartache it causes, its accomplishments are meager.

Of the 1,700 species on the list worldwide, only 15 have recovered to the point that they could be taken off, according to government statistics.

"In terms of actually protecting endangered species and reaching a balance between the needs of a growing society with wildlife needs, it has been less successful," said Paul Campos, a lawyer for the Home Builders Association of Northern California.

For the benefit of frogs, Bay Area developers have had to shift houses away from creeks, and as a matter of routine they now are forced to pay millions to buy endangered species habitat to make up for the habitat they destroy.

In Southern California, an endangered fly -- the Delhi Sands flower-loving fly -- forced a hospital site to be shifted a couple hundred feet.

Protecting endangered fish added $70 million and 12 months to construction of the new Benicia bridge, according to Caltrans.

And two years ago, farmers in the Klamath Basin were denied irrigation water to protect salmon and suckers in the name of the act.

Some farmers went bankrupt, while sales of anti-depressant medication went up, according to Dan Keppen, director of the Klamath Water Users Association.

"Overall, our local businesses have calculated it did about $200 million damage to the community," Keppen said.

Supporters of the law say there is nothing wrong with those outcomes.

Some areas simply should not be developed, they say. Bridge construction needed to accommodate fish and the eventual solution -- a bubble curtain that buffered the sound waves that were killing fish -- worked out. As it turns out, $70 million is just a fraction of the bridge's rising costs, which have more than tripled from $286 million to over $900 million.

The Klamath farmers' water -- delivered through a federal water project -- was needed not just for fish, but also for the tribes and salmon fishermen who depend on them.

"There are beautiful, scenic areas that are going to be saved because of some little frog, or a clapper rail or a harvest mouse," said Bob Doyle, a land acquisition manager at the East Bay Regional Park District, referring to three endangered species in the Bay Area. "(The Bay Area) is a much better place to live because of it."

Thirty years after its passage, the act is run not so much by government biologists as by court orders.

Litigation-minded environmental activists have filed hundreds of lawsuits to protect endangered species and their habitats. Those lawsuits have vastly expanded wildlife habitat protection across the West, but they also have tied up government agencies.

Earlier this year, the Bush administration said lawsuits had become so paralyzing that it declared the law "broken."

Environmentalists say the Bush administration is hostile to the law and has kept endangered species programs underfunded in hopes of getting it changed.

A Bay Area congressman is trying to do just that. Rep. Richard Pombo, R-Tracy, is among the law's most vocal critics.

For eight years, Pombo has been trying to rewrite it, but so far he has been unsuccessful. He now says he plans to pursue smaller scale changes in an effort to tweak the act piece by piece.

As chairman of the committee with jurisdiction over the law, Pombo has the clout to make that possible.

"Rather than a major attempt that would rewrite the act, what we are seeing is a series of piecemeal attacks," said Susan Holmes, a legislative representative for Earthjustice, a law firm that frequently sues the government for stricter enforcement of the law.

Environmentalists worry that Pombo might be able to get some amendments through the House of Representatives and that President Bush would sign them. But the prospects of getting changes approved in the Senate are unclear, especially approaching the 2004 election.

The Endangered Species Act declares that no one may kill or harm a plant or animal listed as an endangered species. The government may not do anything that jeopardizes the continued existence of a species. Habitat must be protected, too. All that, and little of the wiggle room that is built into many laws.

Controversy over the law built little by little.

In the 1970s, the snail darter held up completion of a dam in Tennessee. The government took the case to the U.S. Supreme Court and argued that no one could have intended so small a fish to hold up a multimillion-dollar project. The government lost. The snail darter won.

In the 1980s, northern spotted owls became the focal point in a pitched battle over logging in the Pacific Northwest. Logging on national forests has declined significantly as a result.

But much of the controversy today over the law has its roots in the dry, rugged country of southwestern New Mexico in the early 1990s.

There, environmental activists Kieran Suckling and Peter Galvin were doing battle with the U.S. Forest Service in the same way other environmentalists across the West were: protesting timber sales and grazing plans, filing administrative appeals and getting marginal results. Victories, when they came, applied to limited geographic areas.

Frustrated, the activists in 1993 filed their first lawsuit under the Endangered Species Act to get "critical habitat" designated for two protected fish: the loach minnow and spikedace.

The activists won. The Forest Service, in response, fenced cows out of streamside, or "riparian," areas in the Gila National Forest. According to Suckling, the results were remarkable. Trampled, eroded streams bounced back to life with willows and other vegetation. The streams began to hold more water. Wildlife began to return.

The activists had a new strategy. They started suing. They sued to get species listed as threatened or endangered. They sued to get critical habitat designated, and they sued to force the government to consider impacts on endangered species for all sorts of projects.

"We just sort of bumbled into it," Suckling said.

By Suckling's account, the group, now called the Center for Biological Diversity, has filed 250 lawsuits, 170 of them under the endangered species law.

Other environmental organizations have joined the group in many of those lawsuits. And although some environmentalists complain that the center's aggressive legal strategy has raised controversy, others admire the group's effectiveness.

The group has won 93 percent of its lawsuits, according to Suckling.

The results, according to Suckling, are that 329 species have been added to the list of protected species -- more than one-fourth of all listed species in the country. The lawsuits also have added 34 million acres of critical habitat, an area one-third the size of California.

"It is probably the most powerful, most effective environmental law in the country, probably in the world," Suckling said in an interview from his office in Tucson, Ariz. "The ESA is all about changing the status quo. The mining companies will not be able to mine everywhere they choose. The timber companies are not going to be able to log old-growth forests. Developers will not be able to put up houses everywhere they want. That's why we have it. Otherwise, what's the point?"

Ranchers, developers and others have countered in recent years with their own lawsuits. The result is a flurry of legal paperwork that has gotten so bad that the U.S. Fish and Wildlife Service says it has lost its ability to decide how to enforce the law and which problems to tackle first.

"If we're busy preparing administrative records or court responses, we're not doing recovery actions," said Cay Goude, the assistant field supervisor in the fish and wildlife agency's Sacramento office.

Craig Manson, assistant secretary for Fish and Wildlife and Parks in the U.S. Department of the Interior, said earlier this year that the agency's priorities have been "hijacked" by lawsuits.

Suckling contends that until his group started filing lawsuits, the government was far too timid in enforcing the law, regardless of who was in power in Washington.

"When they say we've taken over their agenda, we've given them an agenda," Suckling said. "They had no agenda before we started."

It's not just government officials and the industry that are critical of Suckling. Some other environmentalists fear that his group has taken too much advantage of the stringent requirements of the act, a strategy that could backfire by helping those who seek to weaken it.

"My personal view is these suits have eroded support for the act," said Robert Irvin of the World Wildlife Fund. "Because of that wave of litigation, the Fish and Wildlife Service is finding it difficult to do other conservation."

Irvin says the law should be amended to encourage more cooperation and less controversy. But he doubts Pombo will propose changes that are in the best interest of wildlife.

Pombo, in a meeting this month with the Times editorial board, said his first shot at amending the law next year would be a bill to raise the scientific standard that must be met before decisions are made on endangered species.

Right now, decisions must be made based on the best science that is available. Pombo would like to raise the bar to require further scientific review of such decisions.

"It's difficult to argue against good science," he said.

But even that proposal will carry controversy. Many scientists worry that when the available science shows a species is in need of protection, the prudent thing to do is to protect it quickly and follow up later with more science.

"There are many species hovering on the brink of extinction and they need scientifically based action to help their recovery," a group of scientists wrote to Congress in response to changes like those proposed by Pombo. "Any changes in the Endangered Species Act are troubling if they slow crucial decisions ... ."


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Mike Taugher covers the environment and energy. Reach him at 925-943-8257 or mtaugher@cctimes.com.

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